r v. Nicola SPAGNOLO, 2023 QCCQ 4461

R. c. Spagnolo 2023 QCCQ 4461 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal Division No: 500-01-208001-203 DATE: July 12, 2023 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ His Majesty the King Prosecutor v. Nicola SPAGNOLO Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ OVERVIEW [ 1 ] On December 5, 2022, Mr.

Nicola Spagnolo was found guilty of aggravated assault. [ 2 ] During the night of August 1 to 2, 2020, Mr. Spagnolo stabbed the victim on the left flank. Only one blow was struck. The victim lost a significant amount of blood. He was taken to the hospital where he stayed for a few days. The medical report mentions a penetrating abdominal injury, an isolated wound with evisceration, to the left flank. [1] [ 3 ] The victim did not testify on sentencing, but a victim impact statement has been filed. [2] There were no defence witnesses. Documents relating to Mr.

Spagnolo’s income in 2020 and 2021 have been filed. [3] [ 4 ] Mr. Spagnolo did not testify but asked through his lawyer to convey his remorse and sympathy to the victim, in addition to offering compensation. THE VICTIM [ 5 ] The victim was 27 years old at the time of the events. He woke up in hospital two days later. He was hospitalized from August 2 to 5, 2020. For a month and a half, he suffered from intense pain for which he had to take medication.

He was in recovery for three months, during which time he could not work and had no income. [ 6 ] The blow left him with significant and apparent marks on the body: a 15-cm scar on the left flank and a 30-cm scar on the abdomen due to surgery to treat internal injuries. [4] The perception of people who see these scars troubles him. [ 7 ] Since the attack, he has been having nightmares and suffering from insomnia. He feels stress and has anxiety attacks. He has had episodes of paranoia and hypervigilance. THE ACCUSED [ 8 ] Mr. Spagnolo is 48 years old.

He was 45 years old at the time of the offence. [ 9 ] He is a sales manager for a company involved in the purchase and resale of automobiles whose owner company is registered in his wife’s name. [ 10 ] His taxable income was $132 216 in 2021 and $77 554 in 2020. [ 11 ] Between 1995 and 2013, he was convicted 22 times, including 9 times for offences relating to the operation of a vehicle and 9 times for failure to comply with an undertaking or a condition.

In 1998, he was fined for assault, and in 2013 he was sentenced to 9 months’ imprisonment for carrying a concealed weapon and possession of a firearm with a tampered serial number. POSITIONS OF THE PARTIES

[ 12 ] The prosecution seeks a sentence of imprisonment of 4 years, considering the use of a concealed weapon, the serious injuries caused to the victim and Mr. Spagnolo’s previous convictions. [ 13 ] Without minimizing the seriousness of the offence and the importance of the consequences for the victim, the defence emphasizes that the incident resulted from the victim’s behaviour. The defence suggests a sentence of 18 months.

LEGAL PRINCIPLES [ 14 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. [5] [ 15 ] This purpose is met by the imposition of just sanctions that reflect the sentencing objectives: denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation, promotion of a sense of responsibility in the offender, and acknowledgment of the harm caused to the victim and to the community. [6] [ 16 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [7] [ 17 ] A court that imposes a sentence shall take into consideration the relevant aggravating or mitigating circumstances relating to the offence or the offender. [8] [ 18 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [9] [ 19 ] General ranges of sentences for particular offences encourage greater consistency between sentencing decisions in accordance with the principle of parity.

But these ranges are guidelines rather than hard and fast rules. A judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing. [10] [ 20 ] Proportionality is determined both on an individual basis, that is, in relation to the accused and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Individualization and parity of sentences must be reconciled for a sentence to be proportionate. [11] [ 21 ] The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. [12] ANALYSIS [ 22 ] The offence of aggravated assault is amongst the most serious offences.

A person who commits aggravated assault is liable to imprisonment for a term not exceeding 14 years. [13] [ 23 ] For a full description of the facts surrounding the commission of the offence, the Court refers to the judgment finding Mr. Spagnolo guilty. Although the victim's behaviour cannot be described as exemplary, the use of a sharp object was totally unjustified. Moreover, the attack was sudden and committed without any warning signs of the presence of a weapon. [ 24 ] The prosecution argues that Mr. Spagnolo used a weapon concealed on him.

For the defence, the origin of this weapon has not been established; it could have been given to him by someone else. During the sequence of events in which Mr. Spagnolo struck the victim, there were only two other people with them: the woman accompanying Mr. Spagnolo and the bar employee. Since these two people kept intervening to avoid a confrontation between Mr. Spagnolo and the victim, it is unlikely that one of them gave the object to Mr. Spagnolo. The evidence allows only one inference: Mr. Spagnolo had the object on him.

Once again, it was used without any warning signs of its presence. [ 25 ] The defence rightly emphasizes the absence of premeditation and repeated strikes. The Court cannot consider these to be mitigating circumstances. However, the Court notes the absence of circumstances generally considered aggravating. [ 26 ] The offence of aggravated assault covers varying degrees of seriousness. Not all injuries are equally serious.

The nature, severity and long-term consequences of the injuries sustained by the victim are highly relevant considerations in determining the appropriate sentence to impose on an offender convicted of an offence that involves bodily harm. [14] On the scale of injuries described by the body of case law, the injuries suffered by the victim fall at the higher end, but closer to the middle than the top. [ 27 ] The defence submits that Mr. Spagnolo was under the influence of alcohol. Although the evidence shows that he consumed alcohol, the Court does not know the extent of this consumption.

There is no evidence that alcohol played any role in Mr. Spagnolo’s behaviour. [ 28 ] As previously noted, Mr. Spagnolo has 22 convictions between 1995 and 2013. The relative weight given to prior convictions varies according to the nature, number, and temporal proximity of these prior convictions. [15] In principle, a significant period of time without illegal activity works in the offender's favour. [16] The lack of convictions since 2013 works in Mr. Spagnolo’s favour. However, he is far from being a first-time offender and was sentenced to a serious prison term not so long before the offence. [ 29 ] Mr.

Spagnolo has been on bail since August 12, 2020. The conditions imposed included a curfew and a prohibition from being in any licenced establishment, except to have a meal without alcohol. The curfew was removed during the proceedings. Time spent under stringent bail conditions can be a mitigating circumstance. [17] The onus is on the offender to establish the facts supporting the impact of the conditions, on a balance of probabilities. [18] For a significant period of time during which Mr.

Spagnolo had to comply with these conditions, very similar prohibitions were imposed on all citizens due to the COVID pandemic. There is no evidence of any particular impact of the conditions on Mr. Spagnolo. While relevant, the conditions of his release have a very limited effect on the sentence to be

imposed. [ 30 ] The sincerity of remorse he expressed only through a lawyer, without testifying or addressing the Court, is difficult to assess. However, the Court takes this into account. [ 31 ] As for Mr. Spagnolo's offer of compensation, since neither the victim nor the prosecution asked for restitution, the Court does not consider it. [ 32 ] To demonstrate society’s disapproval and to send a clear message of deterrence, the crime of aggravated assault generally commands a sentence of imprisonment. [19] [ 33 ] The range of sentences for the offence of aggravated assault is wide.

In many cases, a sentence between 15 to 24 months for the least serious offences is imposed, and 3 to 5 years for the most serious. [20] The jurisprudence is not lacking in cases where sentences of 3 to 5 years were imposed. [21] [ 34 ] The parties submitted several decisions to the Court. For most of them, distinctions can be made based on the objective gravity of the offence, a guilty plea, the age of the accused, the rehabilitation underway, the use of a weapon, the nature of the injuries, the consequences for the victim or the offender’s previous convictions.

A sentence must take all the circumstances into consideration. It must be individualized. The decisions submitted are an illustration of this exercise of individualization. However, a review of some decisions of the Quebec Court of Appeal is instructive. [ 35 ] In R . v . Dagenais , [22] the Court of Appeal increased a 90-day sentence to be served intermittently to 12 months, maintaining a 2- year probation involving the performance of 150 hours of community service. Mr. Dagenais was found guilty.

As a doorman at a bar, he struck several blows in the face of a drunk customer before throwing him outside, unconscious. The victim suffered several fractures leaving him with permanent sequelae. Mr. Dagenais had two previous convictions for violence as a doorman. Considering that Mr. Dagenais had left this occupation, the trial judge emphasized his rehabilitation. The Court described this 12-month sentence as the most lenient possible. [ 36 ] In R . v .

Jean , [23] the Court of Appeal cited society’s interest in rehabilitation and reduced the sentence of a man who was 18 years old at the time of the offence, and who had no criminal record, from 52 months to 36 months. The incident occurred in a bar. Mr. Jean stabbed the victim once in the chest, and the assault left no long-term effects. [ 37 ] In Auguste v . R. , [24] the Court of Appeal dismissed the appeal from a 40-month sentence following a guilty plea. Using a bottle, Mr. Auguste struck the victim twice in the face.

The victim suffered injuries that the Court characterized as significant: two fractures and head trauma which required six days of hospitalization. [ 38 ] In R . v . Foster , [25] the Court of Appeal substituted a sentence of 15 months for a sentence of 90 days to be served intermittently, while maintaining supervised probation for 3 years. At closing time at a bar, Mr. Foster punched the victim in the face and then kicked him in the head while he was unconscious on the ground. The victim suffered severe cranial trauma, a broken nose and cerebral oedema. He had to relearn how to speak and walk.

The elements considered were the accused’s age at the time of the offence, his medical difficulties, his guilty plea, and his continuing employment. However, the risk of recidivism was high. [ 39 ] In R . v. Sylvain , [26] the Court of Appeal intervened to substitute a sentence of 24 months less a day for a sentence of 90 days to be served intermittently, while maintaining a 2-year probation with supervision. The assault occurred in the vicinity of a bar while Mr. Sylvain was heavily intoxicated. After an exchange of punches and the intervention of friends of the victim, Mr.

Sylvain stabbed the victim in the left side. Both of the victim’s lungs were punctured and he was hospitalized for 29 days. He retained 6 scars, one of which was 40 cm long. He can no longer play sports or work and has had to move back in with his parents. Mr. Sylvain was 38 years old at the time of the offence. He had 8 previous convictions, including robbery as a young offender. Mr. Sylvain pleaded guilty, expressed sincere remorse, and participated in anger management therapy. CONCLUSION [ 40 ] The offence committed is objectively and subjectively serious. Mr. Spagnolo is fully responsible for this offence.

The Court knows little about Mr. Spagnolo. He is not a young man. He is not a first offender. His expression of remorse and the time he has spent under conditions, as previously noted, can be considered mitigating circumstances but with limited effect. The aggravating factors are the use of a weapon without warning and the physical, psychological, and economic consequences for the victim. THEREFORE For these reasons, the Court: SENTENCES Mr. Nicola Spagnolo to imprisonment for 3 years; PROHIBITS Mr. Spagnolo, pursuant to

section 109 of the Criminal Code , from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition for life and from possessing any other firearm, crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years after his release from imprisonment; AUTHORIZES , under

section 487.051 of the Criminal Code , the taking of the number of samples of bodily substances from Mr. Spagnolo that is reasonably required for the purpose of forensic DNA analysis.

__________________________________ Yves Paradis, J.C.Q. Mtre Matthew Ferguson For the prosecution Mtre Danièle Roy For Mr. Spagnolo Hearing: April 26, 2023